Citation Nr: 1521437
Decision Date: 05/19/15 Archive Date: 05/26/15
DOCKET NO. 90-01 485 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to an effective date earlier than February 19, 1985, for the grant of service connection for posttraumatic stress disorder (PTSD) with a secondary schizoaffective disorder.
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
ATTORNEY FOR THE BOARD
Jennifer Hwa, Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to September 1968.
Previously, in January 2004, the Board of Veterans' Appeals (Board) determined that new and material evidence sufficient to reopen a previously denied claim for service connection for PTSD had been received. Accordingly, the Board reopened the Veteran's PTSD claim. In addition, the Board remanded the de novo claim for service connection for PTSD for further evidentiary development.
Following completion of the requested development, the RO, in an August 2008 rating decision, granted service connection for PTSD and awarded a compensable evaluation of 50 percent, effective from October 6, 1988. After receiving notice of the August 2008 decision, the Veteran perfected a timely appeal with respect to the effective date assigned to the grant of service connection. [During the current appeal, and specifically by an October 2009 rating action, the RO redefined this service-connected disability as PTSD with a secondary schizoaffective disorder and awarded a total 100 percent rating, effective from October 6, 1988. A November 2009 rating action continued this total rating.]
In March 2010, the Board denied the Veteran's claim for an effective date prior to October 6, 1988, for PTSD with a secondary schizoaffective disorder. The Veteran appealed the March 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2011, the Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion.
In September 2011, the Board granted an effective date of February 19, 1985, but no earlier, for the Veteran's PTSD with a secondary schizoaffective disorder. The effective date of February 19, 1985, for PTSD with a secondary schizoaffective disorder was effectuated by the RO in an October 2011 rating decision. The Veteran again appealed the September 2011 Board decision to the Court. In September 2012, the Court granted the Joint Motion for Partial Remand filed by representatives for both parties, partially vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion.
In February 2013, the Board denied the Veteran's claim for an effective date prior to February 19, 1985, for PTSD with a secondary schizoaffective disorder. The Veteran again appealed the February 2013 Board decision to the Court. In December 2013, the Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In June 2014, the Board remanded the claim for additional development consistent with the joint motion.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.
FINDINGS OF FACT
1. On October 26, 1977, the Veteran filed a claim for service connection for a nervous condition.
2. In a March 1978 rating decision, the RO found that the Veteran's psychiatric disorder of anxiety reaction had first manifested 16 months after discharge and accordingly denied service connection for anxiety reaction. Although notified of that determination and of his appellate rights in April 1978, the Veteran did not initiate an appeal of the denial within one year.
3. On March 14, 1979, the Veteran filed another claim for service connection for a nervous condition.
4. In an August 1979 rating decision, the RO continued the prior denial of service connection for a psychiatric disability. Although notified of that determination and of his appellate rights in September 1979, the Veteran did not initiate an appeal of the denial within one year.
5. On May 27, 1982, the Veteran filed a claim for service connection for "posttraumatic delayed stress."
6. In September 1982, the RO continued prior denials of service connection for a psychiatric disability, to include PTSD. Although notified of that determination and of his appellate rights approximately two weeks later in the same month, the Veteran did not initiate an appeal of the denial within one year.
7. On February 11, 1985, the Veteran was hospitalized at a VA medical facility, during which a diagnosis of PTSD was suggested upon admission (based on a VA medical record of physician work-up dated February 22, 1985) but was not established as one of the clinical diagnoses listed upon discharge on March 18, 1985.
8. In August 2007, the Veteran's stressor concerning rocket attacks on his Long Binh post during service in Vietnam was verified by newly discovered service department records documenting these rocket attacks at Long Binh.
9. In a VA examination report of April 2008, the Veteran was found to have met the criteria for a PTSD diagnosis, which was linked to the stressor that he experienced while deployed in Vietnam.
10. In August 2008, the RO granted service connection for PTSD, effective from October 6, 1988, based on a claim to reopen that was received by VA on that date.
11. During the current appeal, and specifically by an October 2009 rating action, the RO redefined this service-connected disability as PTSD with a secondary schizoaffective disorder, effective from October 6, 1988.
12. By an October 2011 rating decision, which implemented a September 2011 Board decision, the RO assigned an effective date of February 19, 1985, for the grant of service for PTSD with a secondary schizoaffective disorder, based on a claim to reopen that was received by VA on that date.
13. Service department records related to a claimed in-service event, which were previously unassociated with the file, have been associated with the claims file since the original denial in March 1978.
14. The pre-amendment provisions of 38 C.F.R. § 3.156(c) apply to the Veteran's claim, and the Veteran's October 1977 claim for service connection for an acquired psychiatric disorder remains open and pending as of October 26, 1977.
15. The evidence of record is at least in relative equipoise as to whether a clear diagnosis of PTSD was established, or whether the diagnostic criteria for PTSD were met on February 11, 1985, the date of the Veteran's VA hospital admission.
16. Although the Veteran is presumed to have had verified in-service stressors from the time of his original claim on October 26, 1977, the evidence of record does not establish, based on the facts found, a clear diagnosis of PTSD, or that the diagnostic criteria for PTSD were met, prior to February 11, 1985.
CONCLUSION OF LAW
The criteria for an effective date of February 11, 1985, but no earlier, for the grant of service connection for PTSD with a secondary schizoaffective disorder, are met; to this extent only, the appeal is granted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.156 (prior to October 6, 2006), 3.400, 4.3 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants.
Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).
Additionally, the United States Court of Appeals for Veterans' Claims (Court) has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id.
The Court has also held, however, that VCAA notice is not required under circumstances where a claim for disability compensation benefits is granted, an effective date is assigned, and the claimant files an appeal as to the effective date assigned to that grant. See Dingess v. Nicholson, 19 Vet. App. at 491 (in which the Court held that, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104, 7105 and 38 C.F.R. § 3.103 are for application. Id.
Here, the Veteran's claim for an earlier effective date for the grant of service connection for PTSD with a secondary schizoaffective disorder essentially falls within this fact pattern. Previously, in May 2003, VCAA notice concerning the underlying service connection claim was provided to the Veteran. After receiving notice of the award of service connection for this disability, the Veteran perfected a timely appeal with respect to the effective dates assigned to that grant. Clearly, no further section 5103(a) notice is required for the Veteran's earlier effective date claim.
As for the provisions of 38 U.S.C.A. §§ 5104 and 7105 and 38 C.F.R. § 3.103, the record shows that the Veteran has been provided with various communications [including the August 2008 notification of the rating decision dated earlier that month as well as the October 2009 statement of the case] that contain notice of VA's rating communication, his appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. The Veteran has been clearly informed of the basis for the denial of his earlier effective date claim. No further due process development of notification of the earlier effective date claim adjudicated in this decision is required.
Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claim. 38 U.S.C.A. §§ 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2014). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014).
In the present case, the Board finds that the duty to assist provisions of the VCAA have been fulfilled with respect to the earlier effective date issue adjudicated in this decision. All relevant treatment records adequately identified by the Veteran have been obtained and associated with his claims folder. Although given the opportunity to testify before VA personnel, the Veteran declined to do so. The Board finds that the October 2014 retrospective VA examination was adequate. The examiner reviewed the Veteran's claims file and was informed of the relevant facts regarding the Veteran's medical history. The opinion also shows that the examiner considered all relevant evidence of record, including the Veteran's statements. Although the VA examiner was unable to provide a nexus opinion without speculation, the Board still finds that the medical opinion was adequate because the examiner sufficiently explained the reasons for her inability to provide an opinion without speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010).
Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included scheduling the Veteran for a retrospective VA examination to determine the date of onset of his PTSD. In response, the RO/AMC scheduled the Veteran for an October 2014 retrospective VA examination. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
There is no suggestion in the current record that additional evidence, relevant to the earlier effective date issue adjudicated in this decision, exists and can be procured. The Veteran has pointed to no other pertinent evidence (e.g., records of relevant earlier treatment) which has not been obtained. Thus, the Board concludes that no further evidentiary development is required. The Board will, therefore, proceed to consider the following issue on appeal, based on the evidence of record. See 38 U.S.C.A. §§ 5102 and 5103 (West 2014); 38 C.F.R. § 3.159(b) (2014); Pelegrini II; Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Analysis
Generally, the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014). If a claim is received within one year after separation from service, the effective date for the grant of service connection is the day following separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2014).
The effective date of a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(q)(1)(ii) (2014).
A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from the claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Id. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r).
Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014).
Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014).
In this case, the Veteran seeks an award of service connection for PTSD prior to February 19, 1985, the effective date assigned based on the date of receipt of the informal petition to reopen the claim for this disability. Specifically, the Veteran requests an effective date of October 26, 1977-the date of the Veteran's original claim for entitlement to service connection for a nervous condition. Alternatively, the Veteran requests an effective date of May 27, 1982- the date of the Veteran's claim for entitlement to service connection for delayed stress. The Veteran and his representative argue that he should be entitled to one of these effective dates because the confirmation of his stressor was based, in part, on service department records in the form of unit history reports that were not associated with the file when the claim was first adjudicated, pursuant to 38 C.F.R. § 3.156(c).
The basic facts of this case are not in dispute. The Veteran filed his original claim for service connection for a nervous condition on October 26, 1977. At the time of the claim, the evidence of record included VA treatment records noting that the Veteran was complaining of nervousness. In January 1970, the Veteran was noted to have neurotic anxiety and was having difficulty at home. The Veteran was noted to have no significant "problem" but had considerable anxiety and some insomnia. The Veteran was diagnosed with anxiety reaction, and psychoneurotic schizophrenia was ruled out. In February 1970, the Veteran was diagnosed with anxiety reaction with strong obsessive traits and hypochondriacal preoccupation. The author of the treatment note indicated that the Veteran's main complaint centered around symptoms rather than problems. In June 1970, the Veteran stated that he felt better and medication was helping him. In July 1970, the Veteran was described as doing very well and was discharged from further outpatient treatment. In February 1978, the Veteran was seen for psychiatric complaints, including anxiety. In a March 1978 rating decision, the Veteran's claim for entitlement to service connection for nervousness was denied because service treatment records were negative for symptoms, complaints, diagnoses, or treatment for a nervous condition, and the first manifestation of a nervous condition was 16 months after discharge. In July 1978, the Veteran submitted a doctor's statement that the Veteran was being treated with mild anti-anxiety medication and supportive therapy. An April 1978 treatment record also indicated that the Veteran was receiving harassment from his supervisors on the job, and he had increased anxiety and nervousness because his company had hired Vietnamese people. The RO reconsidered the Veteran's claim in June 1978 and continued the previous denial.
On March 14, 1979, the Veteran filed a request to reopen his claim for service connection for a nervous condition. He submitted no additional new medical evidence, and in August 1979, the RO continued the previous denial for the Veteran's claim.
On May 27, 1982, the Veteran filed a claim for "delayed stress," which he asserted began in 1970. A May 27, 1982 progress note reveals that the Veteran was found to be "anxious" and "admit[ted] due preoccupation [with] experiences in V[ietnam] via thoughts, dreams, flashbacks." The examiner recommended that the Veteran be referred to a VA assistance officer to file for "delayed stress." The Veteran also complained of being "hassle[d]" on the job in May 1982. Moreover, a June 1982 medical record shows that the Veteran reported smoking marijuana since his service in Vietnam to "calm his nerves." In September 1982, the RO denied the Veteran's claim for entitlement to service connection for post traumatic delayed stress. The RO noted that the Veteran had attributed his anxiety and depression to harassment on the job and also that the evidence had not shown that the Veteran met the basic criteria for post traumatic delayed stress.
Although notified of the March 1978, August 1979, and September 1982 determinations and of his appellate rights approximately in April 1978, September 1979, and September 1982, respectively, the Veteran did not initiate an appeal of the denials within one year. As a result, the March 1978, August 1979, and September 1982 denials of service connection for a psychiatric disability, to include PTSD, became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).
On February 10, 1985, the Veteran submitted a statement to his Congressman, regarding a disability claim for a nervous disorder. This inquiry was received by VA on February 19, 1985. Three days later, the Veteran was hospitalized with chronic PTSD. As set forth in 38 C.F.R. § 3.155(a), this statement qualified as an informal claim. In a February 22, 1985, VA medical record of physician work-up, Dr. D.G. indicated that the Veteran had an Axis I diagnosis of chronic PTSD. However, in May 1989, the RO declined to reopen the Veteran's claim of service connection for PTSD, in part, because the Veteran's description of his Vietnam service experiences was self-contradictory with no stressor cited.
In March 1999, the Center for Research of Unit Records (now Joint Services Records Research Center (JSRRC)) provided extracts of operational reports and unit histories from the Veteran's prior units in Vietnam. On August 2005 VA examination, the Veteran related stressors from Vietnam to a riot while serving in the stockade and an incident where an angry American opened fire on the depot where the Veteran was working. In June 2006, the Veteran identified the date of the riot at the Long Binh jail to be in February 1968, a sniper attack in March 1968, and the American attack on the depot in March 1968. The Veteran also identified sniper attacks in August 1967, September 1967, and October 1967.
Based on this information, the RO conducted research to verify the Veteran's alleged stressors. In an August 2007 memorandum for the record, the military records specialist was unable to verify the sniper attacks from 1968. The records specialist was also unable to verify the sniper attacks from August 1967, September 1967, and October 1967, because although the events did take place, they did not occur around or near the Veteran or his unit. The records specialist was able to verify rocket attacks at the Long Binh post in November 1967 and December 1967, as well as an enemy attack in December 1967. As the Veteran was stationed at Long Binh during this time frame, the records specialist found that it was at least as likely as not that the Veteran had knowledge of or experienced these attacks. See generally Pentecost v. Derwinski, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). Subsequently, in an April 2008 VA examination, the VA examiner found that the Veteran met the criteria for a PTSD diagnosis and related the PTSD to the Veteran's stressors that he experienced while deployed in Vietnam during service.
On VA retrospective examination in October 2014, the VA examiner thoroughly reviewed the claims file and considered the Veteran's statements. After examination of the Veteran, she stated that she was unable to opine about the date of onset of the Veteran's PTSD diagnosis without resorting to speculation. She explained that she had been unable to find any documentation about the onset of specific symptoms of PTSD prior to February 22, 1985. Furthermore, the Veteran himself had been unable to recall when his symptoms began, noting only that his symptoms had started sometime after returning from Vietnam and that they had gotten progressively worse over the years. He stated that he was unsure when exactly his symptoms started. The examiner explained that the presence of symptoms was not sufficient to warrant a diagnosis of a mental disorder such as PTSD. Instead, the number of symptoms must also be considered, and for PTSD, the number of symptoms within each cluster of symptoms had to be considered. Thus, the examiner indicated that one could report symptoms and still remain below the threshold for a diagnosis. She further stated that in addition to number of symptoms, functional impairment was necessary to consider when establishing the presence or absence of a diagnosis. She found that the Veteran clearly met the criteria for PTSD at the present time. However, she determined that it was impossible to tell from the provided evidence, including the Veteran's reports, record, and chart, at what point his symptoms began to meet the diagnostic criteria for PTSD, especially over a 30 to 40 year time span. The examiner concluded that the Veteran currently met the DSM-V criteria for PTSD, but without the Veteran's own recall of time of onset of symptoms or documentation of symptoms from the required time frame, she was unable to offer an opinion about the date of onset of PTSD without resorting to speculation.
As noted above, the Veteran and his representative argue that he should be entitled to an earlier effective date for the grant of service connection for PTSD due to the applicability of 38 C.F.R. § 3.156(c). Prior to September 2006, 38 C.F.R. § 3.156(c) (2005) stated that if a supplemental report from the service department comprises new and material evidence and is received by VA before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to VA. Id. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. Id. However, the retroactive evaluation of disability resulting from disease or injury subsequently service-connected on the basis of the new evidence from the service department must be adequately supported by the medical evidence. Id.
The regulations regarding the rules pertaining to the reconsideration of decisions on claims based on newly discovered service records received after the initial decision in a claim were amended in September 2006. See 52,455-52,457 (Sept. 6, 2006) (effective as of October 6, 2006). From October 6, 2006, 38 C.F.R. § 3.156(c) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. Such records include service records that are related to a claimed in-service event, additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records, and declassified records that could not have been obtained because they had been classified when VA decided the claim. See id. However, such records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or any other official source. See 38 C.F.R. § 3.156(c)(2) (2014).
Here, subsequent to the Veteran's original claim in October 1977, the RO obtained and associated with the record service documents documenting rocket attacks at Long Binh. The Veteran's claim was granted, in part, on these newly-obtained records. As such, 38 C.F.R. § 3.156(c) applies. See Vigil v. Peake, 22 Vet. App. 63 (2008). Regarding which version of 38 C.F.R. § 3.156(c) is applicable to the Veteran's case, the Court issued the decision in Cline v. Shinseki, 26 Vet. App. 18 (2012), to address the retroactivity of the October 2006 amendment to 38 C.F.R. § 3.156(c). With respect to the limitation of 38 C.F.R. § 3.156(c)(2) on an effective date where a claim was reopened based on service department records if the claimant did not provide sufficient information to allow VA to identify and obtain the records at the time of the prior denial, the Court held that this limitation was not retroactive to claims pending prior to the October 2006 amendment and remanded for the Board to apply the pre-amendment version of 38 C.F.R. § 3.156(c) to the claim. Cline v. Shinseki, 26 Vet. App. 18 (2012); Vigil v. Peake, 22 Vet. App. 63.
Thus, as the Veteran's appeal was pending prior to the October 2006 amendment, the pre-amendment version of 38 C.F.R. § 3.156(c) is applicable to the Veteran's February 19, 1985, claim to reopen. According to Cline, 38 C.F.R. § 3.156(c) would authorize an effective date for a claim reconsidered based on newly discovered service department records as early as the date of the original claim up to the date of the claim to reopen. Vigil v. Peake, 22 Vet. App. 63, 65. In this case, as the Veteran's claim is considered pending since the time of his original claim for service connection, an effective date as early as October 26, 1977, up to February 19, 1985, could potentially be authorized.
In this context, although it can be presumed that at the time of the March 1978, August 1979, and September 1982 rating decisions, the Veteran had verified in-service stressors of experiencing rocket attacks at Long Binh, the record evidence does not support a finding of a clear diagnosis of PTSD, or that the diagnostic criteria for PTSD were met, at the time of the Veteran's original RO denial in March 1978, or the subsequent rating decisions in August 1979 and September 1982. Indeed, at the time of the March 1978 and August 1979 RO denials, the medical evidence showed that the Veteran had nervousness, neurotic anxiety and difficulty at home, some insomnia, and a diagnosis of anxiety reaction with strong obsessive traits and hypochondriacal preoccupation in February 1970. Moreover, a January 1970 medical report revealed that psychoneurotic schizophrenia was ruled out. The evidence did not indicate that the Veteran had a PTSD diagnosis or that such a diagnosis was due to his period of service, including manifestation of the disability to a compensable degree within one year after discharge from service. Further, in the September 1982 rating decision, the RO specifically found that the Veteran did not meet the basic criteria for post traumatic delayed stress and attributed his anxiety and depression to harassment on the job.
This same analysis is strengthen by the fact that while the evidence of record shows the Veteran was given an admission diagnosis that included an Axis I diagnosis of PTSD, during a period of VA inpatient treatment from February 11, 1985, to March 18, 1985, it also shows, at discharge, that the Axis I diagnosis of PTSD was no longer established among the admitting diagnoses. Even though the VA examiner, who prepared the case formulation on February 22, 1985, indicated the Veteran's self-reported history was strongly suggestive of a primary chronic PTSD (and/or possible generalized anxiety disorder) with secondary marijuana abuse, this same VA examiner further indicated that the Veteran should be evaluated during a more extensive period of drug free abstinence in order to clarify this diagnosis. Ultimately, after a course inpatient treatment consisting of drug and alcohol counseling, the VA mental health professionals, at discharge, determined that the established clinical diagnosis responsible for the major part of the Veteran's VA hospital stay was an Axis I diagnosis of marijuana dependence and substance abuse; and that the other established diagnoses for which treatment was given included the Axis II diagnosis of a generalized anxiety disorder. The VA mental health professionals made this decision based on over a month-long hospital course, which included a review of the psychiatric history of the Veteran. See Brentwood VAMC, Hospital Summary (with an admission date of February 11, 1985, and a discharge date of March 18, 1985, and with Medical Record of Physician Work-up, dated February 22, 1985).
Moreover, the October 2014 VA examiner had been unable to find any documentation about the onset of specific symptoms of PTSD prior to February 22, 1985. She had noted that the Veteran himself had been unable to recall when his symptoms began. He indicated only that his symptoms had started sometime after returning from Vietnam and that they had gotten progressively worse over the years, but he was unsure of when exactly his symptoms started. The Board acknowledges that the examiner found that she was unable to opine about the date of onset of the Veteran's PTSD diagnosis without resorting to speculation. However, the Board notes that it is permitted to rely upon a medical examiner's conclusion that an etiology opinion would be speculative as long as "the inability to render a requested opinion is adequately explained" and the examiner has "done all that reasonably should be done to become informed about a case." See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Here, the October 2014 examiner followed her 'mere speculation' statement with the rationale that it was impossible to tell from the provided evidence at what point the Veteran's symptoms began to meet the diagnostic criteria for PTSD, especially over a 30 to 40 year time span. She also explained that the presence of symptoms was not sufficient to warrant a diagnosis of PTSD, but that it was also necessary to consider the number of symptoms, the number of symptoms within each cluster of symptoms, and functional impairment. Thus, one could report symptoms and still remain below the threshold for a diagnosis. She concluded that without the Veteran's own recall of time of onset of symptoms or documentation of symptoms from the required time frame, she was unable to offer an opinion about the date of onset of PTSD without resorting to speculation. As a result, the Board finds the October 2014 opinion to be adequate. In addition to providing adequate reasoning and bases for her inability to render the requested opinion, the October 2014 examiner reviewed the claims file, considered the Veteran's lay statements considering his disorder, and examined the Veteran extensively. For these reasons, the opinion by the October 2014 VA examiner is afforded great probative value.
Based upon the evidence in this case, the exact onset of the Veteran's current symptoms of PTSD cannot be determined with any certainty. Resolving all reasonable doubt in the Veteran's favor, the earliest date that it can be factually ascertained that he met the diagnostic criteria for PTSD or had a clear diagnosis of PTSD is February 11, 1985, the date of his VA hospital admission. The evidence shows that the Veteran's entitlement to service connection for PTSD did not arise until February 11, 1985, which, based on the facts found, relates to an admission diagnosis of (Axis I) chronic PTSD in a February 22, 1985, VA medical record of physician work-up by Dr. D.G. Therefore, the date entitlement arose controls as it is later than the date of the original claim in October 1977 as well as the dates of the reopened claim in March 1979 and May 1982. As a result, under the pre-amendment version of 38 C.F.R. § 3.156(c), the Veteran would not be entitled to an effective date earlier than February 11, 1985, for the grant of service connection for PTSD with a secondary schizoaffective disorder.
In summary, the law provides that the earliest effective date that may be assigned for the grant of service connection for the Veteran's PTSD with a secondary schizoaffective disorder is the date the entitlement arose on February 11, 1985. See 38 U.S.C.A. § 5110(a) (West 2014); see also 38 C.F.R. §§ 3.156(c) (prior to October 6, 2006); 3.400 (2014). Accordingly, an effective date of February 11, 1985, is warranted for PTSD with a secondary schizoaffective disorder. To this extent, the appeal is granted.
ORDER
Entitlement to an effective date of February 11, 1985, but no earlier, for an award of service connection for PTSD with a secondary schizoaffective disorder is granted, subject to the laws and regulations governing the award of monetary benefits.
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DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs